Air Pollution Control Boards : Establishment, Powers, Procedures

    As there is an evident and substantial deterioration in the quality of the environment, concern regarding it has grown over the years. The rise in pollution levels, hazardous chemicals released in the atmosphere, biodiversity loss, lack of plantation poses a threat to the already depleting environment. Owing to the growing environmental concerns, various legislations were introduced by the Parliament to grant protection to the environment. One of such Acts is the Air Prevention and Control of Pollution Act, 1981. It was legislated under Article 253 of the Indian Constitution and seen as an outcome of the commitment made by India in the Stockholm Conference conducted in the year 1972 to deliberate upon the role of human beings in the protection of the environment. Through the Air Act, emphasis is laid upon prevention, reduction and control of air pollution. The main objective of the concerned Act is to carry out the above-mentioned purposes by allocating a list of responsibilities, granting powers and defining functions of the Central and State Boards instituted under this Act to prevent and control air pollution. As per the Act, if any air pollutant is present in the atmosphere, it constitutes air pollution. Furthermore, air pollutants are defined as every solid, gaseous or liquid substance that is present in the atmosphere in such proportion which may prove injurious to any living being or property or plant or environment.  

    Urbanization and industrialization have contributed to a deep decline in the air quality of India. Out of the world’s three million premature deaths occurring per year owing to the indoor as well as outdoor air pollution, the highest estimates are projected to take place in India. The capital city of New Delhi, as per the World Health Organisation (WHO) is ranked among the top ten highly polluted cities around the globe. A number of surveys show that the occurrence of respiratory diseases caused by air pollution, in the capital city, is nearly twelve times the national average.[1]

    As the level of air pollution is increasing day-by-day, it is pertinent to examine the legislation made to control and prevent air pollution and to analyze whether the present Act along with the rules prescribed are sufficient to fulfill the purpose. Application of this Act extends to the whole of India.

    Boards established under this Act

    Two kinds of Boards are instituted under this Act, one being Central Board and other respective State Boards to fulfil the objectives of the Act. While the former is deemed to be equivalent to the ‘Central Pollution Control Board’ (CPCB) that has been instituted under the Water (Prevention and Control of Pollution) Act, 1974 which requires the Board to be established by the Union Government to fulfil the purposes served by the Act, the latter is defined as a Board established in such states wherein the Water (Prevention and Control of Pollution) Act, 1974 is in force and it has been decided by the State Governments to establish concerned Boards. It is further provided that in case Water (Prevention and Control of Pollution) Act is not applicable in any state, the concerned Board is needed to be established under the present Act. The State Board is deemed to be equivalent to the ‘State Pollution Control Board’ (SPCB). It has been stated that in case of UTs, the Central Board should exercise the powers conferred upon the State Board by the Act. In addition to that, the functions or powers can also be delegated by the Central Board to any person or body of persons.

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    Institution and Composition of the Boards

    It is stated under Section 3 and Section 4 of the Air (Prevention and Control of Pollution) Act, 1981 that the Central and State Boards should exercise the powers and functions properly in order to control and prevent Air pollution.

    In view of the fact that Central Board under the present Act is the same as the Central Pollution Control Board as provided under the Water (Prevention and Control of Pollution) Act 1974, which states that the Board shall consist of:

    • A full-time chairman who possesses practical experience or special knowledge with regard to environmental protection matters or any person who possesses knowledge or has prior experience in running the administration of such institutions which deals with the matters related to the protection of environment, provided the Central Government nominates such person.
    •  A maximum number of five officials who are to be nominated by the Union Government as their representatives.
    • Not more than three non-officials who are to be nominated by the Union Government to provide representation to the interests of fishery, agriculture, trade, industry or any such interest which in the opinion of the Central Government should be represented.
    • Two individuals, to represent the corporations or companies owned, managed, or controlled by the Union Government, to be nominated by such Government.
    • A Central Government appointed full-time secretary who possess knowledge, qualifications, and prior experience of engineering, management or scientific facets of pollution control.
    • A maximum number of five members, nominated by the Union Government from amongst the members of the State Boards.  

    Composition of the State Board or the State Pollution Control Board as provided under Section 5(2) of the Air (Prevention and Control of Pollution) Act 1981, consists of:

    • An individual possessing practical experience or knowledge in the matters related to environmental protection shall be nominated as chairman by the State Government.
    • A maximum number of five officials who are to be nominated by the State Government as their representatives.
    •  A maximum number of five members, nominated by the State Government from amongst the members of local authorities operating within the State.
    •  Not more than three non-officials who are to be nominated by the State Government to provide representation to the interests of fishery, agriculture, trade, industry or any such interest which in the opinion of the State Government should be represented.
    •  Two individuals, to represent the corporations or companies owned, managed, or controlled by the State Government, to be nominated by such Government.
    • A State Government appointed full-time secretary who possess knowledge, qualifications, and prior experience of engineering, management or scientific facets of pollution control.

    Powers of the Board

    The concerned Act states the powers of both the Central Board and the State Boards. The powers conferred upon the Central and State Boards constitutes regulatory mechanism which is briefly discussed section-wise as follows:

    •  Section 18 of the Act requires the Central Board to follow the directions issued by the Union Government and the State Boards to follow directions issued by the concerned State Governments. In such a situation where the direction issued by the State Government is not consistent with the decision made by the Central Board, the issue is then referred to the Central Government for resolution.
    • Section 19 is the most essential section that confers power on the State Government to declare particular areas as “air pollution control areas” after consultation with the State Board in some cases.[2] Further, if the concerned Government is of the opinion that certain fuels are probable to cause air pollution in any area that is declared as “air pollution control are”, the Government may prohibit the consumption of such fuels.
    • Section 20 of the Act deals with pollution created by automobiles. This issue is now dealt under the Motor Vehicles Act, 1988 in a detailed manner. Section 21 poses restrictions on the set up of industrial plants in areas which are acknowledged as “air pollution control areas” without taking prior permission from the State Government.
    • Section 22 asserts that any person operating an industrial unit located in an air pollution control area is prohibited to discharge or emit any air pollutant beyond permissible limits set by the State Board. Moreover, if the Board finds out that excess emission is being caused by any person running industrial unit then an application can be made before the court to restrict him from causing air pollution.[3]
    • It is further provided that if owing to any accident or unanticipated occurrence, emission by the industrial unit crosses the permissible limit then the owner of that unit is required to inform about the same to the Board as soon as possible.[4] Additionally, any authorized person possesses the power to enter in any place to discharge his functions and is allowed to inspect as well as examine any document or equipment.[5]
    • The power of the Board to collect samples of the air or of emitted fuels in order to examine it, is provided for under Section 26 to Section 30 of the Air (Prevention and Control of Pollution) Act, 1981. The Board is also empowered to issue directions to discharge its functions efficiently.[6]

    Judicial pronouncement

    The right to clean as well as healthy environment has been recognized as a fundamental right over the years through a catena of cases. The scope of Article 21 of the Indian Constitution has been widened by the judiciary and the right to clean environment falls under the purview of the same section.[7] One such landmark case which helped in improving the quality of air is discussed further.

    In the celebrated Vehicular Pollution Case,[8] it was held that Article 48A along with Article 51A of the Indian Constitution enshrines responsibility on the State to protect the environment. It was further held that the right to clean the environment is a fundamental human right which includes the right to breathe in clean and pollution-free air. This verdict has contributed to the institution of Compressed Natural Gas (CNG) and a committee was formed to come up with long-term solutions to the increasing problem of air pollution in the capital city.   

    Conclusion

    The Air (Prevention and Control of Pollution) Act, 1981 was the result of the commitment made by India at the environment conference held by the United Nations at Stockholm to preserve the environment. The main objective of the Act is to preserve or improve the quality of the air and control or reduce air pollution. The concerned law conferred many powers to the Union and State Governments to initiate action in order to improve the air quality, impose measures to control pollution, and shut down the industries that do not comply with the directions provided.

    However, the relevance of the present Act has declined over the years even though the pollution levels in Indian cities especially in the northern states are significantly increasing. An amendment needs to be made to the present law in order to make its non-compliance punishable with strict penalties so that it is taken seriously in the future course of actions. Also, the sources of pollution other than the obvious sources such as industries or plants needs to be covered under the Act.

    References

    [1] The Air ( Prevention and Control of Pollution ) Act, 1981, available at:  http://www.helplinelaw.com/civil-litigation-and-others/APCA/the-air-prevention-and-control-of-pollution-act-1981.html (last visited December 10 ,2020).

    [2] The Water (Prevention and Control of Pollution) Act, 1974, s 3.

    [3] The Air (Prevention and Control of Pollution) Act, 1981, s 22A.

    [4] The Air (Prevention and Control of Pollution) Act, 1981, s 23.

    [5] The Air (Prevention and Control of Pollution) Act, 1981, s 24.

    [6] The Air (Prevention and Control of Pollution) Act, 1981, s 31A.

    [7] Subhash Kumar v. State of Bihar, 1991 AIR 420.

    [8] M.C. Mehta v. Union of India, 1991 SCR (1) 866.


    BY SAKSHI RATHI | NATIONAL LAW UNIVERSITY, ODHISHA

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